Archive for May, 2010

Appliance Recycling Centers of America, Inc. (ARCA) is a Minnesota appliance recycling company. Earlier this month, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court decision to dismiss false advertising claims ARCA had brought against its west coast competitor, refrigerator and freezer recycler Jaco Environmental, Inc. (Jaco).

Jaco’s alleged offenses included:

calling its recycling method a “unique” system with “unprecedented” results

saying that “JACO’s system for handling contaminated polyurethane is an entirely different approach”

claiming that “no other company could handle polyurethane contaminated with CFC-11″

The district court granted summary judgment for Jaco and the Court of Appeals affirmed, finding insufficient evidence that the statements had misled or deceived consumers.

The Court of Appeals held that the first statement is non-actionable puffery because it is a “general, subjective claim,” not a statement about “specific or absolute characteristics.”

In the greenwashing context, another way to think of the distinction is that the accused statements here did not claim specific environmental or energy efficiency benefits or certification of such benefits.

In most of the other recent greenwashing suits (e.g., the Honda Civic case, the Intel battery life case and the Windex case), the advertising claims at issue related to actual energy efficiency performance, environmental benefits and the appearance of independent third party environmental certification.

In this case, the purpose of the accused statements seemed to be to differentiate Jaco from its competitors. As such, Jaco was cleared of greenwashing. For false advertising claims to stick, to puff is not enough.

Perhaps it’s too early to call it a trend. But clean technology companies have begun to use the fast tracking procedure offered by the U.S. Patent and Trademark Office’s (USPTO) Green Technology Pilot Program for PR purposes.

The ’632 Application is entitled “Methods for recovering oil from a fractionated dry milling process” and is directed to methods for recovering oil from fthin stillage produced in a fractionation-based dry milling process. The invention enables recovery of oil from byproducts created during corn ethanol production.

David Winsness, GreenShift’s CTO and a named co-inventor on the ’632 Application, said the company is “pleased that one of our pending applications has been accepted into this important and timely program” and is looking forward to “additional opportunities to deliver our clients the powerful cost advantages made possible by our patented technologies.”

According to its press release, Skyline is “one of the first companies to receive patent approval under the USPTO’s Green Technology Pilot Program.”

It certainly won’t be the last. With the USPTO recently loosening up the eligibility requirements for the Green Technology Pilot Program, there should be many more applications accepted into the program, more patents granted as a result and more green patent PR surrounding the success stories.

BC Upham at Triple Pundit has an exclusive report this morning that the U.S. Patent and Trademark Office (USPTO) is significantly broadening the eligibility requirements for the Green Technology Pilot Program.

Specifically, the USPTO is eliminating the requirement that a patent application be classified in one of the specific technology classes and subclasses pre-approved as green technology classes to be accepted into the fast track program (see the USPTO press release here).

As I discussed in a previous post, the classification requirement led to the vast majority of petitions for the program being rejected because the universe of eligible classes and subclasses did not fully represent all green technologies.

According to the Triple Pundit story, the change was published this morning in the Federal Register (see the Notice here). The relevant text is as follows:

The USPTO is hereby eliminating the classification requirement for any petitions that are decided on or after the publication date of this notice. This will permit more applications to qualify for the program, thereby allowing more inventions related to green technologies to be advanced out of turn for examination and reviewed earlier.

This is a major improvement to the program that should allow more green patent applications to be fast tracked. It also makes the process easier and less expensive for applicants, obviating the need to finagle by amending the claims to shoehorn them into one of the eligible classes and subclasses.

The other change I’d like to see is opening up the program to newly-filed patent applications. Currently, only patent applications filed before the program launched on December 8, 2009 are eligible.

GS CleanTech Corporation (GS), a wholly owned subsidiary of GreenShift, has recently turned up the heat on a host of ethanol producers, firing off complaints in courthouses across the midwestern United States. The recent lawsuits include:

GS CleanTech Corp. v. Big River Resources Galva, LLC, filed February 12, 2010 in the Northern District of Illinois (gs-galva_complaint.pdf);

The ’858 Patent is directed to methods of recovering oil from byproducts of ethanol production using the process of dry milling, which creates a waste stream comprised of byproducts called whole stillage.

According to the ’858 Patent, whole stillage contains valuable oil but prior processes for recovering this oil have been expensive or inefficient.

GS’s patented method includes mechanically separating the whole stillage into distillers wet grains and thin stillage and then running the thin stillage into an evaporator to form a concentrated byproduct, or syrup. The syrup is fed through a second centrifuge, which separates usable corn oil from the syrup.

By my count the complaints filed this month bring GS’s patent enforcement total to nine lawsuits, which suddenly makes this a major green patent story. Stay tuned.

PetroAlgae is a Florida-based renewable energy company that licenses its technology for growing and harvesting “micro-crops” such as algae, diatoms, micro-angiosperms and cyanobacteria for large scale production of biofuels.

Last month PetroAlgae announced a deal with Chile’s Asesorias e Inversiones Quilicura (AIQ). The memorandum of understanding signed by the parties provides AIQ with an option to purchase a license to build a full micro-crop technology system in Chile to produce green gasoline, diesel and jet fuel (see the Recharge News story here).

According to PetroAlgae’s technology description, its system has a “modular, flexible design construction” that enables “near-continuous” growth and harvesting of a wide variety of micro-crops. The company uses ”proprietary methods of controlling nutrients and light exposure to produce unsurpassed per-acre yields of biomass and protein extracts.”

The large quantities of biomass produced by the growth and harvesting technology can then be refined into transportation fuels.

PetroAlgae owns at least two international patent applications relating to its micro-crop technology. International Patent Application No. PCT/US2007/006466 (’466 Application) is entitled “Systems and Methods for Large-Scale Production and Harvesting of Oil-Rich Algae” and is directed to systems and methods for continuous harvest of microorganisms on a large scale.

Disclosed systems include a central seed fermentation area with numerous final fermentation ponds emanating from the central seed fermentation area and arranged, for example, in a pie shape. The final ponds can be of various shapes or dimensions to accommodate different ratios of seed to final fermentation, different growth rates of organisms, etc.

According to the ’466 Application, wedge-shaped ponds are particularly well suited for growing photosynthetic organisms in continuous culture because media can be added near the point of the wedge and subsequently move toward the wide portion of the wedge, which allows greater surface area and sunlight for the multiplying cells.

With numerous pools, “the growth cycle can be offset between each pool such that there can always be at least one pool ready for harvest each day.”

The ’211 Application describes numerous tubular growth units, or bioreactor pipes, that can each be seeded from a single “nursery” bioreactor. The growth cycles can be offset so there is always at least one bioreactor pipe ready for harvest each day.

The bioreactor pipes can be coated to selectively pass and/or reflect specific wavelengths of light to regulate light exposure for the growing bugs.

The PetroAlgae-AIQ agreement is another example of a partnership to effect green technology transfer from developed countries to developing countries and emerging markets, despite claims that patents are a barrier to such transfer.

However, it appears this tech transfer deal so far has not been hindered by PetroAlgae’s IP. We’ll see if AIQ exercises its licensing option.

In previous posts (here, here and here), I’ve discussed the patent litigation between hybrid vehicle technology company Paice and Japanese automaker Toyota in the U.S. International Trade Commission (ITC).

This case centers on Paice’s allegations that Toyota’s importation of the third generation Prius, the Camry Hybrid, the Lexus HS250h and RX450h (Accused Products) infringe U.S. Patent No. 5,343,970 (’970 Patent).

In a prior action in the Eastern District of Texas Paice won a jury verdict that the second generation Prius, the Highlander and the Lexus RX 400h infringed two claims of the ’970 Patent under the doctrine of equivalents, and the verdict was affirmed on appeal (see my previous post about the verdict and appeal here).

The court awarded Paice an ongoing royalty of $25 per infringing vehicle, which was later increased to $98, but the court denied Paice’s request for an injunction.

Last month in the ITC case, the ITC reversed an administrative law judge’s ruling that Toyota was barred from asserting a defense of non-infringement of the ’970 patent and from challenging the validity or enforceability of the ’970 patent under the principles of claim preclusion and issue preclusion because of the prior federal district court and appeals court rulings against Toyota.

Claim preclusion prevents a succession of lawsuits on a common claim by precluding re-litigation of the same claim between the same parties in a second forum in the absence of certain exceptions.

The ITC opinion (itc_opinion.pdf) found the only “claim” presented in the investigation is Paice’s and “thus claim preclusion cannot be applied as a sword by Paice against Toyota.”

Significantly, the ITC opinion went on to say that “if this investigation is part of the same ‘claim’ as the district court action, and if no exception to claim preclusion applies, then this investigation is precluded altogether.”

Toyota subsequently filed a renewed motion for summary determination (toyota_motion.pdf) asking the presiding administrative law judge to dismiss the case on the ground that Paice’s claim is barred by the doctrine of claim preclusion.

According to Toyota’s motion, the ITC investigation is part of the same “claim” as the prior Texas district court action and none of the exceptions applies.

The only “arguably relevant” exception – that the plaintiff was unable to seek a certain remedy or form of relief in the first action – does not apply, Toyota contends, because there is no meaningful difference between the injunction Paice sought in the district court and the limited exclusion order Paice has requested in the ITC.

In its opposition brief (paice_opp.pdf), Paice counters that claim preclusion should not apply because its ITC claim involves new products introduced by Toyota subsequent to the earlier district court action and therefore is based on acts of alleged infringement that occurred after that case. Thus, Paice contends, the ITC case cannot be deemed the “same cause of action” as the first suit.

Paice also argues that some of the exceptions to claim preclusion apply here, including that it was unable to rely on certain theories in the district court action and unable to seek the exclusionary relief there that is only available in the ITC.

Much is riding on the determination of this motion: Paice has requested a permanent limited exclusion order barring entry into the U.S. of the Accused Products.

Pelamis Wave Power (Pelamis) is an Edinburgh, UK company that makes a snake-like device for generating energy from ocean waves. Pelamis recently announced that it has secured an order for its P2 Wave Energy Converter from ScottishPower Renewables (see Recharge story here).

Pelamis’s P2 Wave Energy Converter (improved from the prior P1 model and rated at 750 kW) consists of several cylindrical sections connected by hinged joints, which move in ocean waves. Hydraulic rams resist the motion of the joints and pump high pressure fluid through hydraulic motors, which drive generators to produce electricity.

The generated power is fed through an “umbilical” cable to a junction on the seabed and then linked to shore. Pelamis’s International Patent Application No. PCT/GB2009/050732 (’732 Application), entitled “Marine connection system and method,” is directed to a system to facilitate faster connection between a marine structure and a sub-sea umbilical cable.

The connection system (1) comprises a buoyant winching system (2) having a winch (9) that can be towed to an off-shore location by a tug or other vessel. Cable (3) is connected to cable (4) via a latching mechanism having a first element (5) and a second element (6).

The second element (6) is permanently located at the connection site and is connected to a location buoy (32) using a tether line (26). The buoyant winching system (2) may include a frame (7) mounted between two buoyancy units (8). The winch (9) is carried on the frame (7) and has a reel (10) and a winch line (11).

A motor (12) is mounted on the frame (7) and may be mounted on the winch (9) for rotation and axial drive of the reel (10). The line (11) is wound around the reel (10) such that it can be selectively paid out and wound in by rotation of the reel.

The ’732 Application also discloses embodiments of the connection system used in conjunction with a marine structure “which comprises the first body to be connected to the second body,” which I read to be Pelamis’s sectional Wave Energy Converter.